Ferreting out the pretext those in power use to mask their motivations is not an exercise of idle speculation but crucial to defending freedom of expression. For instance, First Amendment jurisprudence denies grants of standardless discretion to government actors charged with enforcing neutral regulations like when, where, and how loudly one can speak. Courts worry that those in power could misuse seemingly neutral regulations to burden viewpoints and content that they personally dislike.

Trump’s new social media policy for visa applicants, on its face, might seem like one of these appropriate, neutral regulations. After all, why shouldn’t the United States examine suspicious profiles to “screen out terrorists,” as the administration claims it is doing?

First, the policy’s stated rationale is suspect because the policy will not accomplish its stated purpose. Those who review visa applications already can check suspicious accounts independently and surreptitiously, as well as ask that applicants provide their profiles, an extra layer of scrutiny the administration has employed 70,000 times.

Second, the administration’s own pilot programs, along with as national security experts, indicate that requesting social media profiles will not lead to greater security. Common sense suggests terrorists are not going to provide public plans of their terror activities to security officials in the country they hope to terrorize.

Just last week Trump said, “I don’t think the mainstream media is free speech, because it’s so crooked, it’s dishonest.” Before the policy even went into effect, a Palestinian critic of Trump claimed her visa was denied for the first time because she publicly criticized the administration, and a Yemeni journalist was denied entry to claim his Pulitzer Prize. The current public context makes it all the more rational, and unfortunate, that individuals seeking visas will blunt their criticisms. Or, they may refuse to visit entirely.

As a society, we don’t care about an individual’s right to free expression just because the Framers wrote it into the First Amendment 200 years ago. We care because we already support an individual’s right to speak their mind, and United States’ policy should reflect that.

When refusing to accept the administration’s pretext for adding the citizenship question to the 2020 Census, Chief Justice John Roberts, echoing famed judge Henry Friendly, wrote, “Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’” Trump is the president of pretext, so don’t believe a rationale of “screen out terrorists” when “silence speech” is all the more compelling.

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